Winfrey v. State

Supreme Court of Georgia

June 29, 2018

WINFREYv.THE STATE.

GRANT,
JUSTICE.

Appellant
Jimmy Carlton Winfrey pled guilty to six counts of violating
Georgia's Street Gang Terrorism Prevention Act in
connection with a drive-by shooting of rapper "Lil
Wayne's"[1] tour bus on Interstate 75.[2] Winfrey now
appeals, asserting that the trial judge improperly
participated in plea negotiations in violation of Uniform
Superior Court Rule 33.5 (A) and that his plea was
involuntary on the basis of that participation. We agree, and
we therefore reverse Winfrey's convictions.

I.

Winfrey
entered his plea during a pre-trial hearing where the status
of his plea negotiations was put into the record. The
prosecutor advised that the State had made three offers, each
of which Winfrey had rejected, and that no additional offers
were anticipated. Defense counsel explained that he had
discussed the offers with Winfrey "ad nauseam," but
Winfrey was hesitant to enter a plea because of the effect
Gang Act or RICO convictions might have on his parole
eligibility and therefore, he was ready to proceed with his
pending motions. The trial judge then stated, in part:

[T]his opportunity is going away. Go to trial and you get
convicted there's not going to be any of me being
concerned about when you parole out. I will not be concerned
about when you parole out.

I will not be able to impact what count -- only a jury can
impact what count you get convicted on or don't get
convicted on. So that's for your team to figure out.

Whatever they say you're guilty of I'm going to
sentence you, and I'm not going to worry about when you
get out of jail because it's not my concern.

My concern is you went to trial, you didn't take any
responsibility for what you did or did not do. It was proved
if you get convicted of what you did do. I'll take that
as truth, because a jury said so.

And I would also take into account that you didn't take
responsibility for what a jury says you did, and I won't
worry about your parole eligibility.

And if you want to look around and see what happens to people
in gangs in Cobb County, Georgia you can look at what
happened last week to the guy who went to trial and got
convicted and pulled -- was it 50 years?

[Prosecutors]: One hundred to serve fifty, Judge.

The Court: There you go. These guys tried him. So I'm not
judging them. That's what she did.

I'm a whole different person. And you're sitting over
in jail listening to everybody shoot their mouths off about
this judge and that judge and the other judge.

We all have reputations. My reputation is not that I'm an
easy judge. I know it, you know it, the whole community knows
it. So if that's what you want to go up against be my
guest.

You've got an offer, it's about ready to evaporate.
You're not coming back to there unless you convince a
jury of people from Cobb County, Georgia you didn't do
most of this.

There's such a thing as winning a battle and losing a
war. If you think you're so smart and you've got it
all figured out, you go to trial, let's say you get
acquitted on -- how many counts are there, 27?

So let's say you get acquitted on ten and convicted of
seventeen. You add it all up it's still a mess of time,
and I ...

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